The Asylum and Immigration Act 1996: Erosion of the Right to Seek Asylum

Publication Date01 Mar 1998
AuthorDallal Stevens
DOIhttp://doi.org/10.1111/1468-2230.00138
LEGISLATION
Right to Seek Asylum
Dallal Stevens*
Since the former Home Secretary’s announced intention, in October 1995, to
introduce new legislation in the asylum and immigration fields, asylum and refugee-
related issues have seldom been absent from the public arena. While much of the
discussion during 1996 bore upon the legislative proposals contained in the Asylum
and Immigration Bill — extension of the accelerated appeals procedure, withdrawal
of social security benefits from asylum seekers, prevention of illegal working,
removal of certain in-country appeal rights — recent developments, such as hunger-
strikes by detained asylum seekers, and the election of a Labour government have
brought a sharper edge to the debate.1Despite widespread criticism of the
Conservative government’s proposed measures during their passage through
Parliament, New Labour’s election manifesto lacked any real commitment to
reforming asylum policy.2During campaigning the then shadow Home Secretary,
Jack Straw, suggested that the Labour Party, if elected, would not implement certain
provisions of the 1996 Act: the ‘white list’ of safe countries, the withdrawal of
benefits from asylum seekers and the sanctioning of employers where they recruited
illegal immigrants.3On its accession to power however, the Labour government
proceeded to enforce the restrictive asylum laws introduced by the Conservatives,
though an internal review of the asylum process was announced.4
This note examines the Asylum and Immigration Act 1996 in the context of
previous legislation and critically assesses the changes made to asylum law in the
light of the current debate.
Background
The 1966 Act, which received Royal Assent on 24 July 1996, is unusual in that it
was the second statute on asylum law to be passed in three years. Its forerunner, the
ßThe Modern Law Review Limited 1998 (MLR 61:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 207
*School of Law, University of Warwick
1 See for example Philip Johnston, ‘Pressure mounts over hunger strike’ The Daily Telegraph 31
January 1997; Richard Ford, ‘Detainees go on rampage’ The Times 21 August 1997.
2New Labour — Because Britain Deserves Better (London: Labour Party, 1997) 35.
3 Stephen Grey and Matthew Prescott, ‘Straw signals U-turn to ditch tough immigration laws’ Sunday
Times 13 April 1997.
4 On 19 July 1997 at the Immigration Advisory Service Annual Conference, Mike O’Brien, the
Parliamentary Under-Secretary of State, announced that the new government wanted to review all
aspects of the Asylum and Immigration Act 1996 but that, in view of lack of parliamentary time,
new legislation would not be introduced in the 1997/98 session. The Minister repeatedly confirmed,
however, that pre-election commitments would be upheld. A review was announced on 21 August
1997.
Asylum and Immigration Appeals Act 1993, established the first asylum-specific
regime in the United Kingdom, thereby helping to free refugee law from the legacy
of aliens’ legislation dating back to the turn of the century.5Prior to 1993 asylum
applications in the UK were handled as a branch of immigration law and were
governed by the Immigration Act 1971, which made no specific reference to
refugees, and by the immigration rules, a purely administrative device. Appeal
rights for refused applicants were problematic in that not all categories of refused
asylum seekers were guaranteed an in-country right of appeal.6The Court of
Appeal and House of Lords were not open to appeal for any asylum case, though
judicial review was always an option. Protection is accorded to refugees by
international law, in particular by the 1951 United Nations (UN) Convention on the
Status of Refugees, to which the UK is a signatory; but the UK had been reluctant
to incorporate the 1951 Convention in national law. In the 1993 Act, a concession
was finally won from the government, which agreed to grant the 1951 Convention
primacy over conflicting national immigration rules.7
While it was recognised that the system prior to 1993 was unsophisticated, this
was not considered a problem so long as asylum applications remained at a
manageable level. The sudden rise in numbers of claims in the late 1980s brought
the inadequacies of the UK’s refugee-determination process to the fore.8The
under-staffed Home Office division found it increasingly difficult to handle the
burgeoning case-load. The government reacted with two changes in policy: first, it
began systematically to impose visa restrictions against countries deemed to be
producing high numbers of asylum seekers; second, in 1987 the Immigration
(Carriers’ Liability) Act was passed. It granted the Secretary of State the power to
demand a specified sum of money from a carrier which had transported a passenger
not in possession of valid documentation (such as a passport and visa), whether an
asylum seeker or not.9The lack of a specific visa for refugees and the problems of
obtaining standard visas for those forced into flight led some members of the
judiciary to concede that the 1987 Act, coupled with visa restrictions, might ‘pose
substantial obstacles in the path of refugees wishing to come to this country’.10
During the same period in the 1980s, public attention was drawn to the peculiar
plight of the detained asylum seeker. The wide powers of immigration officers to
detain,11 the lack of a limit on the length of time for which a detainee might be held
and the limitations on bail meant that Immigration Act detention was an unusually
harsh administrative power. Yet until the mid-1980s, there had been limited
publicity about the use of detention for asylum applicants. Then, in 1985, the
British government imposed a visa restriction against Sri Lanka in response to the
increase in numbers of Tamils seeking asylum in the UK. The detention facilities
Order 1920.
6 Appeal rights prior to the enforcement of the 1993 Act depended upon the status of the asylum
seeker at the time the application was lodged. Where an applicant entered through a port without
entry clearance and was refused refugee status or exceptional leave to remain, there was no right of
appeal before being returned to the originating country: Immigration Act 1971, s 13(3).
7 Asylum and Immigration Appeals Act 1993, s 2.
8 In 1985, there were 4,389 applications; in 1989, 11,640. By 1995, the figure had reached 43,965:
Home Office Statistical Bulletin Asylum Statistics 1995, 16 May 1996.
9 For a wider discussion see Cruz, Carriers’ Liability in the Member States of the European Union
(Brussels: Churches Commission for Migrants in Europe, 1994); Feller, ‘Carriers’ Sanctions and
International Law’ (1989) 1 International Journal of Refugee Law 48.
10 RvSecretary of State for the Home Department, ex p Yassine [1990] Imm AR 354, 359–360.
11 Immigration Act 1971, Sched 2 para 16.
The Modern Law Review [Vol. 61
208 ßThe Modern Law Review Limited 1998

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